Human rights

Firth and others v United Kingdom (App. No. 47784/09), European Court of Human Rights, 12 August 2014

Prison – Prisoner – Right to vote – Applicant prisoners lodging applications against United Kingdom complaining prevented from voting in European Parliament elections – Applicants seeking damages and costs – Whether applicants having to show they had applied to be registered as voters – Whether applicants’ rights being breached – Whether applicants being entitled to damages and costs – European Convention on Human Rights, art 34, First Protocol, art 3.

The ten applicants were British nationals who were incarcerated following criminal convictions. They were ineligible to vote in the elections to the European Parliament in June 2009 pursuant to primary legislation. The applicants lodged applications against the United Kingdom, under art 34 of the European Convention on Human Rights, complaining that they had been prevented from voting in violation of art 3 of the First Protocol to the Convention (A3P1). They claimed for non-pecuniary damage, and their costs and expenses.

The issues for determination were: (i) whether the applicants had to demonstrate that they had applied to be registered as voters in accordance with the applicable deadlines for voter registration in order to show that they had ‘victim’ status within the meaning of art 34 of the Convention, and that their applications were compatible ratione personae with the Convention and its protocols; (ii) whether there had been a violation of A3P1; and (iii) whether the applicants were entitled to damages and costs. Hirst v United Kingdom (No 2) ([2005] All ER (D) 59 (Oct)) (Hirst), Smith v Scott (2007 SCLR 268) (Smith) and Greens and another v United Kingdom ([2010] All ER (D) 280 (Nov)) (Greens) were considered.

The court ruled:

(1) Smith, in considering the refusal of an Electoral Registration Officer to enrol a convicted prisoner on the electoral register on the basis of the applicable legislation, held that the legislation could not be read compatibly with A3P1 and, accordingly, made a declaration of incompatibility (see [11] of the judgment).

In the circumstances, it was self-evident that any application by a convicted prisoner for registration as a voter was bound to fail as long as the legislation remained in the same terms as that considered in Smith. Accordingly, it was not necessary for the applicants to have undertaken the wholly pointless exercise of applying to be registered as voters in order to be able to show that they could claim to be ‘victims’ of an alleged violation of A3P1 deriving from the statutory prohibition on voting. Further, the applicants’ complaint was not manifestly ill-founded or inadmissible on any other grounds (see [12], [13] of the judgment).

Smith v K D Scott (Electoral Registration Officer for the areas of Clackmannanshire, Falkirk and Stirling) 2007 SCLR 268 considered.

(2) Greens provided that a statutory ban on prisoners voting in elections to the European Parliament had been, by reason of its blanket character, incompatible with A3P1. It further indicated that some legislative amendment would be required in order to render the electoral law compatible with the requirements of the Convention (see [14] of the judgment).

Given that the impugned legislation remained unamended, as in Hirst and Greens, and for the same reasons, there had been a violation of A3P1 in the applicants’ case (see [15] of the judgment).

Hirst v United Kingdom (No 2) (Application No 74025/01) [2005] All ER (D) 59 (Oct) considered; Greens v United Kingdom (Application No 60041/08) [2010] All ER (D) 280 (Nov) considered.

(3) The finding of a violation constituted sufficient just satisfaction for any non-pecuniary damage sustained by the applicants. An award in respect of legal costs would be declined, as the legal costs claimed by the applicants could not be regarded as reasonably and necessarily incurred (see [18] of the judgment).

Karina Weller   Solicitor (NSW) (non-practising).

Ten British prisoners issued proceedings against the United Kingdom, complaining that they had been prevented from voting in European Parliament elections in violation of art 3 of the First Protocol to the Convention (A3P1). The European Court of Human Rights held that there had been a violation of A3P1. However, it refused damages, as the finding of a violation constituted sufficient just satisfaction for any non-pecuniary damage sustained by the applicants.

Judges Ineta Ziemele, President, Päivi Hirvelä, George Nicolaou, Ledi Bianku, Zdravka Kalaydjieva, Paul Mahoney, Krzysztof Wojtyczek